Jarvis v. Mohr , 18 Wis. 188 ( 1864 )

By the Court,

Cole, J.

We think the power attempted to be exercised by the clerk in this instance was in its nature clearly judicial. The 37th section requires the defendant, among other things, to state in his answer that he “ is ready to pay such portion of the costs and disbursements in said action as shall be adjudged just and reasonable ; ” and the next section contemplates an adjustment of the costs upon equitable principles. This language plainly shows that it was not the intention of the law to have all the costs of the suit absolutely taxed against the defendant, not even when the plaintiff elected to receive the deposit and release his claim to the land. Eor if such had been the object of the statute, it would have required the defendant to pay the costs of the whole litigation, and not such a portion of them as should be “ adjudged just and reasonable.” The design doubtless was to give the court discretion over the matter, so that it could look into the pleadings and record, and award or refuse costs to the plaintiff according to the justice of each particular case. It is strictly analogous to the power vested in courts of equity upon the question of costs. And such being the case, the adjustment and apportionment of the costs required the consideration and judgment of a court. Ordinarily where the law gives the prevailing party costs, the taxation of them is a mere ministerial duty, which the clerk can properly perform. The principle is, to tax the statutory allowance for every proceeding in the suit, and there is no room for the exercise of any discretion upon any point. Not so here. Here the matter of adjusting and awarding the amount of costs which a defendant must pay calls into exercise a high judicial faculty, since it is necessary to take into view the circumstances of the particular case, the situation and conduct of the parties, in order to say what is just and reasonable. We do not think it was tbe intention of the statute to vest the power of determining these questions in the clerk of the circuit court.

The order of the circuit court is therefore affirmed.